TMI Blog1991 (2) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... t proposing to assess them on the purchases effected by them from the decorticating mills at Alangudi and inviting their objections to the said proposal. The assessee seems to have opposed the proposal on the ground that the tax has been paid already by the decorticators and that the assessee should be permitted to go through the records of the decorticators and examine the representatives of the said decorticators. The assessing authority rejected the plea of the assessee on the ground that the decorticators from whom the assessee purchased the commodity in question were held to be not dealers as per the orders of the Sales Tax Appellate Tribunal (Additional Bench), Madurai, in T.A. Nos. 546 to 556 of 1976 and that, therefore, they cannot be treated as dealers so as to render them liable to tax treating them as first purchasers. Consequently, the purchases of the assessee from the decorticators were treated as first purchases exigible to tax under the Act. Time was given by the authorities to the assessee to enable them to look into the records of the decorticators and to get the refund of tax, if any, paid by them and since the said time also expired by April 24, 1980, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision proceedings. 4.. After a careful consideration of the respective submissions of the learned counsel on either side and the materials on record in the light of the decisions placed before us for consideration, in our view, no interference is called for in favour of the assessee in this revision petition. Learned counsel for the petitioner, in support of the plea of violation of the principles of natural justice, relied upon the decisions reported in State of Kerala v. Shaduli Yusuff [1977] 39 STC 478 (SC) and S.L. Kapoor v. Jagmohan AIR 1981 SC 136. In the first of the decisions referred to above, which arose under the Kerala General Sales Tax Act and the rules made thereunder, the Apex Court had an occasion to consider the question of opportunity to be given to an assessee while rejecting his accounts and making a best judgment assessment on the basis of certain entries in third party's accounts. It was in that context the said court came to the conclusion that inasmuch as the evidentiary materials procured from third parties were sought to be relied upon for showing that the return and the accounts submitted by the assessee in that case were incorrect and incomplete, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie material and proof that those decorticating mills are not first purchasers. That being the position, the onus upon the petitioners to prove that the purchases made by them are really second purchases not exigible to tax in their hands is very heavy. This information with the relevant particulars has been indisputably furnished to the petitioners and as could be seen from the order of the assessing authority itself, the assessees were given time to enable them to look into the records and take appropriate action at their end. The decorticators in question are not departmental people and if the assessee wanted them, nothing prevented them from examining them or any of their representatives on their side to substantiate their stand. Not only the assessee seems to have miserably failed in this regard, but from the order of the Tribunal, it could be seen that the petitioners also placed reliance upon an affidavit which contained a graphic description of the nature of the transaction of the decorticating mills. There is no controversy before us that similar and identical affidavits from other decorticators were also placed and are available on record. Thus the affidavit that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating mills before the authorities, we consider that the plea of denial of opportunity and violation of principles of natural justice has no merit whatsoever. The plea on behalf of the petitioner sounds to be more technical than real and more ingenuous rather than being genuine. Consequently, we have no hesitation in repelling the same. 7.. The further plea on behalf of the petitioner that their transactions are second purchases and that consequently they are not liable to tax, equally merits rejection in our hands and does not commend our acceptance. This Court, on more than one occasion, in series of decisions, has categorically held that if an assessee claims that he is not liable to tax on the ground that his sales or purchases are second sales or purchases, he is bound to show that there was an earlier taxable sale or purchase, though it was not necessary for the assessee to prove that the earlier sale had actually suffered tax. The onus was on the assessee to establish that the decortieating mills were dealers and first purchasers to be able to substantiate that they are second purchasers and thereby get an exemption of their liability on that ground. It remains now to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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